Be afraid (but not very afraid)

The scarily tough and complex demands of the new Part L have left many contractors confused and anxious. But difficulties enforcing the energy-efficiency regulation suggest that its bark may be a lot worse than its bite.

GRRRR!!!! Next year the industry will have buck up its ideas and get its energy efficiency act together, as it is forced to implement the new Part L. Among other things, these new regulations will contain tougher thermal standards and a move towards much more complicated ways of calculating whether a building is compliant (see 13 February, pages 55-57). So more hard work for everybody all round, then.

But hold on a minute – maybe it is the government that should be feeling nervous. There is evidence that even the current version of Part L is being widely flouted, which means it is pointless to introduce an even more complex and demanding version.

This is not lost on the Office of the Deputy Prime Minister, which is so concerned about non-compliance that it recently hosted a private seminar with the Foundation for the Built Environment. This revealed a catalogue of problems with the enforcement of Part L.

Part L presents a particular problem for councils' building control departments. There is often little incentive for them to spend precious time checking a regulation that will not harm anyone if it is ignored. Departments are more likely to enforce Part A (structures), and Part B (fire safety) than energy conservation regulation. Also many Part L requirements are hard to check – for example it is effectively impossible to investigate the depth of floor insulation once it's under a layer of concrete.

Brian Anderson, technical director of research group BRE Scotland, carried out a survey of building control departments and approved inspectors to find out how they were dealing with enforcement. "If they had more resources they could watch more carefully over what was happening on site," he says. He adds that there are concerns over whether building control actually checks the robust standard details that are designed to prevent air leakage.

Theoretically, if a dwelling has been built with robust standard details, it should not need to be checked for airtightness. To check whether this was true in practice, BRE pressure-tested 40 homes constructed using robust standard details. Only 10 of the homes passed the test (leaking less that 10 m3/h/m2 at a pressure of 50 Pa). The leaks occurred in places that are supposed to be addressed by robust construction details.

The problem of air leakage extends to non-residential buildings. The Air Tightness Testing and Measurement Association carried out a survey that revealed that 35% of buildings eligible for air-pressure testing are tested. Between 50% and 60% of office and retail developments passed first time. According to the ATTMA, building control adopts a very piecemeal approach to testing, as some authorities say there is no need to test, and others pass buildings after a visual inspection. Another finding was that buildings tend to perform better where contractors know their project is likely to be tested. This suggests that the threat of a random test may focus minds, as the potential costs of failure are so high – in some instances, a building may need to be partially dismantled to seal its leaks.

The inconsistent approach to enforcement is made worse because of the competition between building control departments and private sector approved inspectors. The competition between the two offers an incentive to be less strict so as to win more work. Stuart Borland, who runs air-pressure test company Building Sciences, says: "An approved inspector we know well who is very keen on air-pressure testing phoned us up and said he would have to stop asking for tests. He simply wasn't getting any business as clients were going to firms that didn't demand air-pressure tests."

Andrew Warren, the director of the Association for the Conservation of Energy, says this has a negative effect on enforcement overall. "The building control officer who is known to be a stickler is always at risk of people going to an approved inspector. This has the effect of driving standards down."

Warren says another problem is that enforcement powers are so weak. If a case of non-compliance is discovered and a local authority decides to prosecute, it only has six months after the contravention was committed to bring the case to court. Even if the case is brought in time, it will be heard by magistrates who can only dish out small fines. "If the legal powers do not even exist in theory, it reduces the size of the stick you can hold over people," says Warren. He thinks building control should be more like the Environment Agency, which has extensive legal powers and a reputation for carrying out spot checks.

"The Environment Agency does most of its effective work not by dragging people through the courts, but by having a big stick behind its back."

But there is a bigger problem than enforcement. George Henderson, of the Faber Maunsell Nectar team, has surveyed the industry's views on the present version of Part L. He has found that a key concern is the complexity of the regulations. "They say they understand the guidance but when you probe deeper you find they don't understand the detail at all well," he says.

This doesn't bode well for the next revision of Part L. Part of the reason for the next year's change is that the government has to implement a European directive called the Energy Performance of Buildings. This requires a move away from the simpler elemental method of calculating a building energy performance to a more complex whole-building method. According to Anderson, many applications made to building control use the elemental method, which is easy to check. "As the regulations become more complex it will become more difficult for local authority building control to say a building is compliant," he says.

That's if there are any local authority building control officers left by then. Arwel Griffith, president of the Association of Building Engineers, says: "One of the big issues for the ODPM is that there is a drift away from people working in the public sector as the money is so poor," he says.

"The young people who are coming into the profession are all money-orientated," he adds. "Someone of 21 can earn more money than someone in a building control department who has been doing his job for 15 years. I can't see there is much future for building control." Griffith also says the ABE has noticed that there is less demand for its training courses and believes this is because money earmarked for training and development is now going into a central pot rather than directly to building control departments. This makes it harder for local authorities to keep up to speed with changes in the regulations.

So what is the ODPM planning to do about the problem of enforcing Part L?

To that it says: "We ran the seminar with the Foundation for the Built Environment to gather more information on the enforcement of Part L. The event was a good opportunity to hear industry views on the issue of compliance and enforcement, and how they might be addressed. We will be considering these views further."

As the next Part L is coming out next year, they had better get cracking.

The issues at a glance

Next year, Part L of the Building Regulations is to be revised to come in line with European regulations. It will include a more complex whole-building method of calculating energy performance.

There are doubts about the effectiveness of building control inspections. A recent survey revealed that only 35% of buildings eligible for air-pressure testing are tested.

Building control’s enforcement powers are weak. It has only six months after a contravention occurs in which to bring a case to court.

The competition between public sector building control departments and private sector approved inspectors results in a less strict approach to inspections in order to win more work.

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